Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 257248

Student’s Name: REDACTED

School District: REDACTED

Impartial Hearing Officer: Joshua Pal

Date of Filing: 09/07/2023

Hearing Requested by: Parent

Date of Hearing: 11/20/2023

Record Close Date: 11/24/2023

Date of Decision: 11/24/2023

BACKGROUND

Parent, 1 through counsel, filed a Due Process Complaint (“DPC”) on or about September 7, 2023. In the Request, the Parent alleges that the Department of Education (“DOE”) failed to implement an individualized education service program (“IESP”) for the 2023-2024 school year. (Ex. A).

Parent alleges that the DOE failed to develop an IESP for the 2023-2024 school year and failed to implement the services mandated in a June 2, 2021 IESP. (Id.). By way of relief, Parent seeks an order that District fund Provider Agency for services for the 2023-2024 school year. (Id.). In light of the foregoing and as more fully discussed below, I find that Parent failed to make a timely request for equitable services by June 1, 2023. Further, even if a timely request was made, I find that a) the DOE failed to meet its burden that it offered Student services on an equitable basis for the 2023-2024 school year, but b) Parent failed to meet their burden that Provider Agency offers Student specially designed instruction sufficient to meet Student’s needs, and c) the equities would not support the Parent’s requested relief even if Prongs I and II were met.

PROCEDURAL HISTORY

I was appointed on September 14, 2023. On October 13, 2023, the parties appeared for a settlement conference. The parties indicated that a resolution of this matter had not been reached, and a Due Process Hearing (“DPH”) was scheduled for November 1, 2023. On November 1, 2023, at the start of the DPH, District asserted the June 1 defense, claiming a lack of timely request for services. Parent objected to the defense being raised at the hearing, as opposed to at an earlier time. I found that the defense was properly asserted at the lowest administrative level. Parent then requested an adjournment to produce documentation to address the defense raised by District, and the matter was rescheduled for November 20, 2023. At that time, the parties jointly moved for an extension of the compliance period, which I granted.

On November 20, 2023, both parties appeared for a virtual hearing. The DOE did not seek to introduce witness testimony nor any other evidence, maintaining that Student was not entitled to services based on the lack of a June^[1] notice. Parent offered nine exhibits into the record, eight of which were entered into the record without objection by the DOE.^[2] The ninth

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

Student is a REDACTED year-old child classified as a student with a Speech or Language Impairment. (Ex. B). Student’s classification is not in dispute. When the IESP was developed in June 2021, Student was working below grade level and could not follow written or oral directions. (Id.). Student struggled with letter recognition and had poor reading comprehension. (Id.). Student needed support with single-digit addition. (Id.). Student presented with receptive language, articulation, and expressive language deficits. (Id.). Following the June 2, 2021 IESP meeting, the Committee on Special Education (“CSE”) developed an IESP which recommended five periods of Special Education Teacher Support Services (“SETSS”) per week in Yiddish and in a group setting as well as two 30-minute sessions of Speech-Language Therapy (“SLT”) per week in Yiddish and on an individual basis. (Id.).

On June 29, 2023, Parent signed a contract with Provider Agency for SETSS at a rate of $195 per hour and SLT at a rate of $250 per hour. (Ex. F). In the contract, Parent confirmed their understanding that Student was entitled to receive funding or reimbursement from the DOE for the recommended IESP services. 4 (Id.). Parent also confirmed that the DOE had not offered any suitable providers to Student in connection with the recommended services “mentioned above” for the 2023-2024 school year. 5 (Id.).

On or about August 21, 2023, Parent, through counsel, sent an email to District informing them that Parent consents to the services in the June 2, 2021 IESP but had been unable to locate providers for the SETSS and related services at the DOE’s standard rate. (Ex. C). The notice stated that they had no choice but to implement the IESP on their own and were seeking direct funding from the DOE. (Id.). Parent now seeks payment for Provider Agency’s services. (Ex. A).

give this document no weight. Additionally, at the November 1, 2023 appearance, I stated that it would be included in the record. (November 1, 2023 Transcript at p. 4). 3 The instant decision is being issued prior to the completion of the November 20, 2023 transcript. 4 The contract did not reference a specific IESP date or list the services recommended in any IESP from the DOE. (Ex. F). 5 There were no services indicated on the contract in the section referenced “above.” (Id.).

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (20 U.S.C. § 1401(9)). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

Dual enrollment/June 1 requirement

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2)). The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137(a)). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c(2)). Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law§ 3602-c(2)(b)(l)).

Here, at the outset of the DPH, District Representative raised the issue of the June 1 requirement. (See November 1, 2023 Transcript). 6 Parent Representative argued that the District was required to be raised prior to the hearing. (Tr. at 8). Parent’s position is inconsistent with recent SRO decisions. (See Application of a Student with a Disability, Appeal No. 23-140, Application of a Student with a Disability, Appeal No. 23-162). [T] he issue of the June 1st deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]. (Id.). As was the case in SRO 23-140, I find that “while it would have been preferable for the district to have raised the issue at the pre-hearing conference or status conference, the district did raise it at the initial hearing level and the parent had the opportunity to respond to the defense.” I find that the District did not waive the June 1 requirement either procedurally or substantively. Further, with respect to any alleged prejudice to Parent, once the defense was raised, the hearing was adjourned for approximately three weeks, giving the Parties ample time to address this issue.

In their opening statement, Parent Representative argued that the evidence would show that the District received the June 1 letter and therefore had an obligation to provide services. (See November 20, 2023 Transcript). In their disclosures, Parent Representative provided a three-page document containing: (1) the DOE form requesting services for students who were parentally-placed in nonpublic schools; (2) a graphic listing Parent’s address in the “Sender” field, the CSE address in the “Recipient” field, four blue circles labeled “01”, “02”, “03”, and “04”, above the words “Completed” and “The Recipient Has Most Likely Received This Order”; and (3) a page containing what appears to be meta data. (Ex. I). District objected to this Exhibit, arguing there was no apparent connection between the first page (the letter) and the next two pages. (See November 20, 2023 Transcript). Parent Representative responded, indicating that the letter has a watermark at the bottom with the numbers “5610”, which matches a line titled “description” on the third page of the exhibit. (Ex. I). District maintained their objection, noting that the documents do not indicate how or when the item was allegedly sent to the CSE. (See November 20, 2023 Transcript). Parent Representative indicated that Parent would be able to testify to the details regarding the June 1 notice and added that Parent was fortunate enough to have had assistance from Provider Agency in giving the required notice. 7 (Id.). In their testimony, Parent indicated that they received a great deal of help with paperwork from Provider Agency, though Parent could not specify what paperwork they received assistance with. (Id.). When asked about the request for services (June 1 notice), Parent testified to working with Provider Agency in May but could not recall what they worked on. 89 (Id.). Parent could not recall whether they sent a notice to the DOE themselves or if they sent a notice to Provider Agency. (Id.). When asked about the second page of Exhibit I, Parent stated that they were 7 I will not address the appropriateness (or lack thereof) of a service provider requesting services on behalf of a student via a June 1 notice in this decision, though it raises a number of concerns. 8 Most of the questions to Parent posed by District and myself were answered with “I do not recall at this time.” 9 Parent also testified that both Provider Agency and Parent Representative assisted in preparing Parent’s affidavit (Ex. D). As noted in footnote 7, I have several concerns with a service provider providing Parent’s testimony in a matter regarding funding for services from said service provider. As an aside, it should be noted that Parent’s name was misspelled on both their affidavit and Ten Day Notice. (Ex. C, D). familiar with the document but could not recall what it was or where it was from. (Id.). Simply put, there was no testimony that definitively states that any document was sent to the DOE prior to June 1, 2023. (Id.). Program Coordinator was not asked about this notice, as they testified that they started working for Provider Agency in August 2023. (Id.). I find that they would have no personal knowledge of the notice at issue here.

I do not find Parent’s testimony to be compelling and do not find that the evidence presented proves by a preponderance that a request for services was sent to the CSE before June 1, 2023. Aside from Parent’s testimony that Provider Agency helped them with “paperwork” and that they do not know if a request for services was sent by them to the District or to Provider Agency, I am left with a document that not only could not be authenticated, but cannot even be identified. There was no testimony offered as to what pages 2 and 3 of Exhibit I purport to be or where they came from. It should be noted that neither page contains any sort of company logo or insignia to indicate what service was used to deliver the item or how it was sent (i.e. United States Postal Service, United Parcel Service, FedEx, email, etc.). Page 2 contains four blue circles that give the appearance that they are some sort of official tracking graphic, though there is no indication as to what each of those numbered circles represent (i.e. delivery, transit, etc.). Further, the text below the blue circle labeled “04” that read “Completed” and “The Recipient Has Most Likely Received This Order” [emphasis added] is especially concerning and counters any notion that this is an actual confirmation of delivery. There was no testimony to explain the watermark relied on by Parent Representative to connect the various pages of Exhibit I.

Parent offered into evidence the Ten Day Notice they sent to the CSE on August 21, 2023. (Ex. C). The content of the Ten Day Notice itself does not support Parent’s position that a request for special education services for the 2023-2024 school year was timely made. In their letter, Parent references the June 2, 2021 IEP meeting (from over two years earlier) and states that they consent to all services recommended but have no way of implementing the recommendations. (Id.). There was no reference to a May 2023 request for services nor was any concern raised with the fact that the CSE failed to reconvene following a timely request for special education services. (Id.). Had a request for services been made for the upcoming school year (2023-2024), one would expect there to be a reference to said request in a subsequent communication regarding Student’s services. I find that the June 26, 2023 Ten Day Notice was the first and only communication to the CSE. Having found that the June 1 requirement under Educ. Law § 3602-c(2) was not satisfied, I find that Student is ineligible to receive special education services and am dismissing this matter with prejudice.

For completeness of the record, were the June 1 defense not applicable, and a timely request for services was made, I will discuss the merits of Parent’s claims. For reasons discussed below, were the case not dismissed due to the June 1 requirement and Student was in fact entitled to special education services for the 2023-2024 school year, I would find that Parent is not entitled to the relief being sought. As SROs have recently held, cases such as this are subject to analysis under the Burlington/Carter standard, the prongs of which are discussed below.

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, at hearing. While the District Representative did not explicitly concede Prong I, they indicated on the record that they were presenting no witnesses or documents in support of their case. Therefore, I am constrained to find that the DOE failed to offer Student equitable services for the 2023-2024 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer equitable services for the 2023-2024 school year. ^[10]

Prong II

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112)" Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Program Coordinator testified that during the intake process, they review prospective student evaluations, progress reports, and other clinical materials to determine whether their agency can provide appropriate services. (Ex. E). They then assign an appropriate educator to the student, ensuring that each teacher assigned has the expertise needed for that specific student. (Id.). They testified that Student is currently receiving SETSS from SETSS Provider and SLT from Speech-Language Therapist.^[11] (Id.). While these providers did not offer testimony at the DPH, Program Coordinator testified that the providers prepare for sessions, create goals, write progress reports, and meet with teachers and parents. (Id.). Program Coordinator testified that Student is already showing signs of progress but still needs the continuation of services. (Id.).

I find that Parent has not met their burden in proving that the private program offered an educational program which met Student’s needs under Prong II of the Burlington/Carter standard. With respect to Student SLT, the record before me is lacking with respect to evidence of Student’s speech-language needs. While Program Coordinator testified that goals were established, lessons were planned, and progress was tracked, there is nothing in the record to support these claims or establish how the program met Student’s individual needs, such that Student could benefit from Speech-Language Therapist’s services. There was no evidence presented as to what Provider Agency or Speech-Language Therapist identified as Student’s needs or what was being done to address these needs. Nor was any progress report offered regarding Student’s SLT. It is impossible to determine, based on the record before me, what Student’s SLT entails or how Student may benefit from it. I found Program Coordinator’s testimony regarding this to be conclusory, rather than informative, in light of the evidence presented.

Regarding the SETSS, Parent offered into evidence the credentials of SETSS Provider. (Ex. H-1). This record establishes that SETSS Provider currently has certificates in Early Childhood Education and Students with Disabilities, both of which apply to children from Birth to Grade 2. (Id.). SETSS Provider also has a bilingual education extension. (Id.). The record also establishes that SETSS Provider has only held certificates for children in this same age range. (Id.). The June 2021 IESP identified Student as being in the first grade at the time it was developed. (Ex. B). This would mean that as of the time of the DPH, Student would be in the fourth grade.^[12] Based on this, I find that SETSS Provider is not an appropriate educator for or has specific expertise related to Student. Further, Program Coordinator testified that SETSS Provider is trained and experienced in teaching literacy and comprehension to school-aged children and adolescents. (Ex. E). This statement is belied by the fact that SETSS Provider has never been certified to teach adolescents. (Ex. H). Without offering a resume or credible testimony regarding SETSS Provider’s training and experience outside of their certifications, I find Program Coordinator’s testimony regarding SETSS Provider to be incredible and unreliable.

Parent offered a Progress Report regarding Student’s SETSS services. (Ex. G). The report stated that Student has advanced since they started receiving services. (Id.). The report does not indicate when Student started receiving services. (Id.). Parent testified that Student was working with Provider Agency prior to this school year but could not state how many years they had worked together. (See November 20, 2023 Transcript). A finding of progress is not required for a determination that a student’s unilateral placement is adequate. Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-10 (S.D.N.Y. 2/4/13); M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App’x 76, 78 (2d. Cir. 2013); D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App’x 80, 81 (2d Cir. 2012). However, significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 365 (2d Cir. 2006) (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001). Here, the Progress Report contains no baseline data, so I am unable to determine the level of progress that Student has made. (Ex. G).

In reviewing the record before me, the weight of the evidence fails to establish that Student’s individual special education needs were addressed by Service Provider or that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364.

Equities

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of equitable services for the Student for the 2023-2024 school year. Therein, Parent detailed specific concerns. (Ex. C). Parent furthermore gave the DOE notice of their intention to unilaterally implement services and seek funding. (Id.). No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.

With respect to the contract with Provider Agency, based on the absence of proof of a contractual obligation on the part of Parents to pay Provider Agency, I am denying Parents’ request for direct funding of SETSS services. See Application of a Student with a Disability, SRO Opinion No. 23-122 (“there is no way to tell from the face of the contract the amount of services the agency would provide to the student or the cost thereof”). Here, there is insufficient evidence in the record to support a finding that Parents incurred a financial obligation that would support an award of direct funding for the 2023-2024 school year. (Id.). Despite language in the contract that Parent is liable to pay Provider Agency the fill amount for all recommended services delivered, the contract does not indicate the amounts of services to be rendered. (Ex. F). The top portion of the contract references “the recommended IESP services.”^[13] (Id.). The contract does not reference a particular IESP (date) or list the quantity of services Parent is contracting for. (Id.). While the contract goes on to list the types of services Provider Agency “intends to provide” and the hourly rates for these services, it does not list the number of hours for each service nor does it make clear that these are the recommended services in the IESP. (Id.). Without this information, it is impossible to determine the actual financial liability that Parent is assuming. Lastly, when asked if Provider Agency would collect the balance from Parent if the DOE were ordered to pay a rate below the contracted rate, Program Coordinator could not answer, stating that they are not involved in finances.^[14] Based on this, even if the June 1 defense was not applicable, and if Prongs I and II of the Burlington/Carter analysis were established, the record would not support Parent’s requested award.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) Parent’s claim for direct funding for Student’s SETSS by Provider Agency is DENIED for the 2023-2024 school year and this case is dismissed, with prejudice.

(2) Parent’s claim for direct funding for Student’s Speech-Language Therapy services by Provider Agency is DENIED for the 2023-2024 school year and this case is dismissed, with prejudice.

Dated: November 24, 2023

Impartial Hearing Officer

Joshua Pal

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

None

PARENT EVIDENCE

A. Due Process Complaint (DPC) 9/7/2023 6 pages

B. Individualized Education Services Program (IESP) 6/2/2021 12 pages

C. Ten-Day Notice (TDN) 8/21/2023 2 pages

D. Affidavit of Parent 10/26/2023 2 pages

E. Affidavit of REDACTED 10/26/2023 3 pages

F. Contract 6/29/2023 1 page

G. Progress Report 10/25/2023 3 pages

H. Credentials undated 2 pages

I. June 1 Letter with mailing receipt 5/23/2023 3 pages

IHO EXHIBITS

None

Redacted Information Term Used In FOFD

REDACTED Student

REDACTED Parents/Guardians

REDACTED Parent Attorney/Representative

REDACTED District Attorney/Representative

REDACTED Private School

REDACTED Provider Agency

REDACTED Program Coordinator (for REDACTED)

REDACTED SETSS Provider REDACTED Speech-Language Therapist

Footnotes

[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.

[2] Parent Representative offered Exhibit I as evidence, a three-page document which was described as “June 1 Letter with mailing receipt.” DOE objected to this exhibit, arguing that the second and third pages lacked a connection to the first page (the letter) and that the document did not demonstrate its purported purpose, which was proof of delivery. The document was marked for identification, but was not admitted at the hearing, as Parent Representative submitted that Parent’s testimony would establish the necessary connection. As will be discussed in greater detail below, I will admit the document into the record, but find that the necessary connection was not established and will exhibit from Parent was entered into the record over District’s objection. Included in Parent’s evidence were two affidavits, one from Parent and one from Program Coordinator. The DOE cross-examined both of the affiants. Parent then rested, at which time both DOE and Parent’s counsel made oral closings. (See November 20, 2023 Transcript). 3 6 Specific references to the November 1, 2023 Transcript from this point on will be denoted as “Tr. at” followed by the page number.

[10] Again, these conclusions are being offered assuming that Student was entitled to receive Special Education services for the 2023-2024 school year.

[11] Program Coordinator testified that they were involved in selecting and assigning the providers for Student. I do not find this statement credible. First, Program Coordinator testified that they just started working for Provider Agency in August and Student began receiving services for this school year in September. Also, given that Student was receiving services from Provider Agency for at least one year, and given Parent’s familiarity with these providers, I find that Student’s providers were already working with Student, and Program Coordinator was not involved in the selection process for Student.

[12] Program Coordinator testified that Student is currently in the third grade. (See November 20, 2023 transcript). Without any evidence that Student was retained at any point, and is not currently in the fourth grade, this raises doubts as to Program Coordinator’s familiarity with Student. (Ex. E, paragraph 10).

[13] This section also has Parent confirm that Student is entitled to receive funding or reimbursement from the NYC DOE, which is a legal conclusion to be determined at this DPH, and is presumptuous to include in a contract signed in June preceding this school year. (Ex. F).

[14] This was Program Coordinator’s response to my question, despite the facts that they devoted three paragraphs of their affidavit to rate charges for services and types of costs incurred by Provider Agency.